A new front has been opened by the plaintiffs class action bar in the “food wars.” In addition to claims against food and beverage manufacturers challenging unregulated words like “natural,” or specifically regulated terms like “good source,” we have seen an uptick in new cases based upon allegations of nonfunctional slack-fill. A recent decision by the Ninth Circuit Court of Appeals is unlikely to stem the tide of new slack-fill cases.
What is Slack-Fill?
Slack-fill is defined by the U.S. Food and Drug Administration as “the difference between the actual capacity of a container and the volume of product actually contained therein.” 21 C.F.R. § 100.100(a). This regulation and definition of slack-fill were adopted in January 1994, as part of the new regulations complimenting the Nutrition Labeling Education Act (NLEA). Federal laws addressing deceptive food packaging date back to the early days of the Progressive Era, beginning with the Federal Food and Drug Act of 1906 (34 Stat. 768 (1906)), and the first federal law specifically prohibiting slack-fill as a type of misbranding came with the passage of the federal Food, Drug and Cosmetics Act (FDCA) in 1938. 21 U.S.C. § 301 et seq. The FDCA prohibited food containers that are made, formed or filled in a manner so as to be deceptive concerning how much product the package contains.
Slack-fill claims can be attractive for consumer class actions because the federal standard applies nationwide and any different state standard is expressly preempted. 21 U.S.C. § 403(A)(a)(3). Thus, simply by establishing that a food or beverage manufacturer has committed a slack-fill violation, a consumer plaintiff has taken an important step towards stating a prima facie case under the consumers in all 50 states, based upon allegations of “unlawful” conduct.